The phenomenology of marriage equality for all 50 states

by Russell's Rants

Originally published April 30, 2013

9d669dfd9d4981ceda8624d01a6cf7fbOur current debate about gay marriage proves that Abraham Lincoln knew a thing or two about the constitutional interpretation. He believed that the founding documents of our Republic, from the Declaration of Independence to the Constitution, were aspirational. They contained the DNA that allowed each succeeding generation to form a more perfect Union.

US Constitution - We The PeopleYes, the Constitution as originally adopted restricted suffrage to white men. Yes, it counted African Americans as three-fifths of a person for census, but not voting, purposes. And yes, the restrictions of the Bill of Rights applied only to the federal government, not to the states.

But Lincoln believed the founding principles of equality, liberty and the pursuit of happiness for all to be self-correcting. And he believed the Supreme Court had a role to play in that self-correction, along with the amendment process specified in Article V of the Constitution.

Today the movement toward marriage equality shows the internal logic of the Constitution at work in real time. And for those who worry that the Supreme Court will only go half-way – striking down the federal Defense of Marriage Act, but allowing the states to define, and restrict, marriage as they please for the foreseeable future – the progressive trajectory of the Constitution will prove them wrong. Maybe not next month when the Court rules, but soon.

Thurgood Marshall came to understand the command to desegregate in Brown v. Board of Education with “all deliberate speed” to mean “slow.” I’m thinking the movement toward marriage equality may be a little speedier than that. And, in part, because the Constitution demands it.

It was always the design of the professional gay rights legal community to get the anti-DOMA cases before the High Court first. It offends even constitutional conservatives, like Associate Justice Anthony Kennedy, for the federal government to be in the business of defining marriage and intruding into a domestic matter traditionally left to the states. The only reason Proposition 8 is being decided concurrent with the anti-DOMA cases is due to the maverick legal representation of the guys who argued on opposites side of Bush v. Gore – Ted Olson and David Boies. Olson, a libertarian Republican, and Boies, a Democrat, likely believe in their cause, but you know what they say about the best of intentions.

Based upon the oral arguments, most believe the Supreme Court will strike DOMA from the U.S. Codes, but punt on Proposition 8 – perhaps finding the appellants to lack standing. Certainly, there was no indication at oral argument that there are 5 justices in favor of constitutionalizing the right to marry – in other words a 50 state solution. Instead, the federal government will have to respect the 19 states plus the District of Columbia that currently allow gay marriage or domestic partnership/civil unions and the other 32 states that don’t.

But that’s where Lincoln’s phenomenology of the Constitution kicks in.

Article IV, Section 1 provides:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

And Article IV, Section 2 and the Fourteenth Amendment requires each state to recognize the “Privileges and Immunities” of the citizens of all states.

A Supreme Court ruling next month striking down DOMA will invite a gay couple legally married in, say, Massachusetts, to move to, say, Georgia, and demand recognition of their marriage under the Full Faith and Credit Clause. That will set up the next big constitutional test for the Supreme Court to decide – and likely move us closer to marriage equality in all 50 states – with all deliberate speed.